FAITH CASE BEFORE SUPREME COURT TARGETS ILLEGAL DRUGS

Justices Lean Toward Ceremonial Use of Hallucinogen

WASHINGTON -- The U.S. Supreme Court yesterday reacted with surprising
sympathy to the claim by a small religious movement with roots in
Brazil that it should be allowed to import a tea containing an illegal
hallucinogenic drug for use in its rituals.

If the justices decide in favor of the group, they would breathe new
life into a 12-year-old federal law known as the Religious Freedom
Restoration Act, which in certain cases allows believers to ignore
laws that interfere with their faith.

Noting that federal law permits 250,000 members of the Native American
Church to use the hallucinogen peyote as part of its worship, Justice
Ruth Bader Ginsburg asked a lawyer for the Bush administration why it
wants to prevent 130 U.S. adherents of a faith known as O Centro
Espirita Beneficiente Uniao do Vegetal from importing a sacramental
tea known as hoasca from Brazil. Hoasca contains a hallucinogen called
dimethyltryptamine or DMT.

"The government has to recognize one, why not the other?" Justice
Ginsburg asked Deputy U.S. Solicitor General Edwin S. Kneedler.

Justice Antonin Scalia, noting that Native Americans have used peyote
without the drug being diverted to general use, said that was "a
demonstration that you can make an exception without the sky falling,"
an observation echoed by Justice Stephen Breyer.

Mr. Kneedler replied that Congress made an exception for the religious
use of peyote out of respect for the traditional rights of Indian tribes.

But Justice David H. Souter noted that the 1993 Religious Freedom
Restoration Act was worded broadly. It might not matter, Justice
Souter said, that "Congress didn't think of this case."

Congress passed the act to overrule a 1990 Supreme Court decision in
which the justices upheld the state of Oregon's refusal to provide
unemployment benefits to two members of the Native American Church who
had been fired for using sacramental peyote.

The act, which was supported by a broad range of religious groups,
allowed believers to opt out of generally applicable laws -- including
drug laws -- if they had a religious motivation and their compliance
with the law wasn't required by a "compelling state interest."
Moreover, the burden was on the government to prove that the
"compelling" interest couldn't be achieved without violating religious
freedom.

In 1997, the Supreme Court severely limited the reach of the act when
it ruled that Congress lacked the authority to force states to comply
with its provisions. But the law remained on the books as a limitation
of the federal government.

Mr. Kneedler told the court that DMT, the active ingredient in hoasca,
the tea consumed by the church, is illegal not only under U.S.
Controlled Substances Act but also under a 1971 treaty called the
United Nations Convention on Psychotropic Substances.

But Nancy Hollander, the lawyer for the church, said that, properly
interpreted, the treaty did not cover hoasca, and that other countries
that signed the treaty have found ways to accommodate the use of
otherwise-illegal drugs in religious rites.

That argument carried little weight with Justice Scalia, who doesn't
believe that U.S. courts should rely on the decisions of foreign
tribunals. But Justice Scalia suggested that the treaty issue was
irrelevant because Congress could override a treaty, just as it could
a federal statute.

Even Chief Justice John G. Roberts Jr., who expressed strong support
for federal drug regulation in a recent argument over
physician-assisted suicide, suggested that the Religious Freedom
Restoration Act might require some concessions to religious groups
that used otherwise-banned drugs.

In a second argument yesterday, several justices expressed concern
about the way a 17-year-old accused murderer in Annapolis, Md., was
induced to talk to police even after he asserted his Miranda right to
talk to a lawyer. Under a 1981 Supreme Court ruling, interrogation
must stop once a suspect says he wants a lawyer.

After Leeander Blake said he didn't want to speak without an attorney
present, a police officer showed him a court document suggesting --
falsely -- that he might face execution if convicted. "I bet you want
to talk now, huh?" the officer said.

Another officer intervened, saying Mr. Blake already had asked for a
lawyer and couldn't be questioned. But half an hour later, Mr. Blake
asked the second officer if "I can still talk to you" and later
incriminated himself.

Maryland's highest court refused to allow Mr. Blake's statement to be
admitted, and most Supreme Court justices yesterday seemed to agree
that Mr. Blake had not "initiated" the second conversation, but rather
was responding to cues by the police.

Maryland Assistant Attorney General Kathryn Grill Graeff told the
court that Mr. Blake had initiated the later conversation, but only
Chief Justice Roberts and Justice Scalia seemed sympathetic to her
position.